Lawyers are the most frequent targets of judges' anger. Anger at attorneys tends to be triggered by perceptions that they are incompetent; interfering with the prompt, orderly, and fair hearing of cases; defying the judge's authority; or lying-and sometimes all of these. As Judge O'Brien quipped, not only is attorney incompetence a frequent provocation, but "[w]orse still is impertinence by the incompetent, a combination that persistently remains in fashion."143
One of the best-known explosions of judicial wrath came from U.S. District Court Judge John Sprizzo. He ignited a media firestorm when, in 1989, he excoriated prosecutors for having handled a drug case so badly, in his view, that he had no choice but to dismiss charges against half the defendants.144 When a prosecutor protested that
"heroin traffickers" were about to "walk out the door," Sprizzo responded:
Now, wait. You are not going to lay that one on me. You let heroin traffickers out the door by not proceeding in a competent enough fashion.... Do you know what is wrong with your office, and you in particular? You assume all we have to do is say narcotics.... [aInd the judge will roll over and let the case go to the jury. You people have not been trained the way I have been trained.... I am telling you that in this case you didn't get away with it. If you had been a competent prosecutor, which you are not, you would have hedged against the possibility that maybe the judge would disagree with you ... on the law. ... If these drug dealers are walking free, it is because you did not hedge against that possibility. Don't lay it at my doorstep .... [I]f they are walking out of here it is because you people were not competent enough to put in an extra charge in your indictment. Sit down. 145
The judge's words were so "scathing" that he promptly sealed the record to prevent media reports from reaching and prejudicing jurors.146 As reported in his obituary nearly a decade later, the
is unlikely to bubble into public view at anything near the rate at which it occurs, given the infrequency with which judges' dealings with one another are open to public view. Still, these glimpses provide important clues as to what is likely happening more generally.
143. O'Brien, supra note 141; see also Keith L. Alexander, D.C. Superior Court Judge Declares Mistrial over Attorney's Incompetence in Murder Case, WASH. POST, Apr. 1, 2011, http://www.washingtonpost.com/local/dc-superior-court-judge-declares-mistrial-over-attorneys- competence-in-murder-case/2011/04/01/AFlymrJC-story.html (stating that a judge, "obviously angry and frustrated, told [lawyer] that his performance in the trial was 'below what any reasonable person would expect in a murder trial' ").
144. William Glaberson, The Law; Judge Refuses to Open Proceeding, N.Y. TIMES, Mar. 10, 1989, at B7.
145. Id.
146. Sprizzo unsealed the transcript of the proceedings only after being legally challenged by the NEW YORK TIMES. Id.
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infamous incident put Sprizzo's formidable "temper" on public display.147
While Sprizzo's reaction may have been sharp, it was not unique. Ninth Circuit Chief Judge Alex Kozinski has spoken unapologetically about his anger at a federal prosecutor, whom he
caught in a lie; indeed, he characterized the incident as perhaps the angriest he has ever been at work.148 While Sprizzo chewed the errant lawyer out verbally, Kozinski did so in writing. In his telling, he deliberately included the prosecutor's name multiple times in a scathing written opinion, removing it only after the U.S. Attorney's Office asked him to do so, and after he was satisfied that his message to that lawyer and his Office had been heard.149
Judicial anger at attorney incompetence and misconduct sometimes comes packaged not in a vicious tongue-lashing but in a thick layer of sarcasm. This varietal is heavily favored in the
"benchslap" market. Consider, for example, the lawyer-directed benchslap with which this Article began. U.S. District Court Judge Sam Sparks, unhappy with lawyers who were seeking to quash certain subpoenas, issued an order directing them to attend a "kindergarten party" in his courtroom.150 At that party, he wrote, they would learn such crucial skills as:
How to telephone and communicate with a lawyer ....
An advanced seminar on not wasting the time of a busy federal court and his staff because you are unable to practice law at the level of a first year law student.
147. Bruce Weber, John E. Sprizzo, 73, U.S. Judge, Dies, N.Y. TIMES, Dec. 18, 2008, at B12;
see also Editorial, The Judge Who Spoke Too Soon, N.Y. TIMES, Mar. 10, 1989, at A32 (characterizing the judge's remarks as "heated" and "angry," and opining that "the judge would not have got involved with this insult to the First Amendment had he had the presence of mind to hold his tongue").
148. Maroney, supra note 13, at 1493 (citing Interview with the Hon. Alex Kozinski, Chief Judge, U.S. Court of Appeals for the Ninth Circuit, in Nashville, Tenn. (Feb. 6, 2010)).
149. Id.; see also John Schwartz, Judges Berate Bank Lawyers in Foreclosures, N.Y. TIMES, Jan. 10, 2011, at Al (stating that judges handling shoddily-done foreclosures have begun to
"heap some of their most scorching criticism on the lawyers"); Christine Stapleton & Kimberly Miller, Foreclosure Crisis: Fed-up Judges Crack Down on Disorder in the Courts, THE PALM BEACH POST, Apr. 4, 2011, http://www.palmbeachpost.com/news/news/real-estate/foreclosure- crisis-fed-up-judges-crack-down-on-dis/nLrJ2/ ("Angry and exasperated" judges are "hitting back by increasingly dismissing" foreclosure cases and accusing lawyers of "fraud upon the court.");
Jonathan Bandler, Angry Judge Delays Annabi, Jereis Corruption Trial Until 2012, LOHUD.COM (May 17, 2011), http://www.lohud.com/article/20110518/NEWS02/102170004/Angry-judge-delays- Annabi-Jereis-corruption-trial-until-2012 (stating that an "angry federal judge lashed out" at prosecutors for bringing charges that could have been brought months earlier).
150. Morris v. Coker, No. A-11-MG-712-SS, A-11-MC-713-SS, A-11-MC-714-SS, A-11- MC-715-SS, 2011 WL 3847590, at *1 (W.D. Tex. Aug. 26, 2011).
VANDERBILT LAW REVIEW [Vol. 65:5:1207
Invitation to this exclusive event is not RSVP. Please remember to bring a sack lunch!
The United States Marshalls have beds available if necessary, so you may wish to bring a toothbrush in case the party runs late.1 5 1
Aggressively snarky,152 the kindergarten-party order quickly went viral on the Internet.153 The judge seems to have been so angry that he wanted not just to change the lawyers' behavior but also to humiliate them.154
Other judges also use barbed sarcasm to communicate anger to lawyers. Consider Fox Industries v. Gurovich, a routine civil case that devolved into a "morass.' 155 Multiple opinions by both the district judge and the magistrate paint a picture of two people being slowly, but effectively, driven crazy by Simon Schwarz, Esq. The judges were infuriated not only by the lawyer's incompetence, but also by his apparent willingness to defy their authority and lie. In one episode that the judge called the "mystery of the evanescent courthouse,"
Schwarz missed a hearing (resulting in a default against his client) and claimed that he and a taxi driver were excusably unable to find the (very large) federal courthouse, despite being in the right (very small) town. Such a mishap, wrote the judge, was plausible only if '"Mr. Schwarz and his driver deliberately avoided looking at the courthouse (cf. Lot and his daughters fleeing the destruction of Sodom and Gomorrah, see Genesis 19:15-17)."156 Refusing a motion to disqualify himself, the judge agreed that he had "expressed varying degrees of disapprobation, hostility, impatience, dissatisfaction, annoyance, and anger with [Schwarz's] antics," including by calling
151. Id.
152. MERRIAM-WEBSTER'S DICTIONARY (2012) (defining "snarky" as "crotchety, snappish;
sarcastic, impertinent, or irreverent in tone or manner").
153. Two thousand three hundred and ninety-four people 'liked" or shared the ABOVE THE LAW feature on the "kindergarten party order" on Facebook, and more than four hundred people
"tweeted" it on their Twitter accounts.
154. See infra notes 270-74 and accompanying text (addressing propriety of seeking to humiliate).
155. No. CV 03-5166(TCP)(WDW), 2006 WL 2882580, at *8 (E.D.N.Y. Oct. 6, 2006). The case involved trade secrets and an employment noncompete agreement.
156. Fox Indus., Inc. v. Gurovich, 323 F. Supp. 2d 386 (E.D.N.Y. 2004). The judge continued:
[Schwarz] offers increasingly detailed and fantastic excuses for his absence. See, e.g., Exhibit 17 to Gore's Motion to Disqualify, featuring three photos taken at various locations within Central Islip that purport to demonstrate the invisibility of the mammoth white courthouse. Yet, as a point of epistemology, as Defense Secretary Donald Rumsfeld has observed in other circumstances, "An absence of evidence is not evidence of an absence." Even if Mr. Schwarz "could not find" it, the Alfonse M.
D'Amato United States Courthouse does exist and is visible to the dozens of other lawyers, as well as hundreds of jurors, witnesses and workers, who arrive here every day. (And, ironically, one of the photos ... actually does picture the courthouse.) Id. at 388 n.1 (emphasis in original).
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various of his statements " 'baloney,' 'false,' 'fraud,' 'impossible,' 'incredible,' and 'a lie.' "157 He refused, however, to apologize for his anger, for those statements, or for characterizing Schwarz's briefs as
"ejaculations."5 8
Snarky benchslaps draw attention because they are funny-a guilty pleasure, an indulgence in Schadenfreude.159 Indeed, one of the main draws of television judges is their frequent use of over-the-top anger and sarcasm. Judge Judy, with her "iron gavel" and "tough- talking take-downs," is "ratings gold"'160 for her network because people enjoy seeing "bozos loudly castigated."'16 1 Of course, whether one finds a benchslap funny depends on whether it seems like the person really is a "bozo" who deserves the derision.162 And attorneys on the receiving end, not surprisingly, often protest that they do not deserve it, or that even if they do, their clients should not be the ones to suffer.
157. Id. at 389.
158. About the term "ejaculations," the court wrote:
[The Court is at a loss as to how else to describe the sentences in Mr. Schwarz's brief that consist only of the words 'How ridiculous!' and 'How pathetic!' . . . Surely Mr.
Schwarz is aware of the alternate definition of "ejaculation": to wit, a "sudden short exclamation." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.2000). The Court obviously did not intend an alternative available meaning.
Id. at 388 n.2; see also Fox Indus., 2006 WL 2882580, at *8-9 (magistrate furious over lawyer's usurpation of court's authority in matter of subpoenas).
159. MERRIAM-WEBSTER'S DICTIONARY (2012) (defining "Schadenfreude" as "enjoyment obtained from the troubles of others").
160. Cynthia McFadden et al., Judge Judy Rules No-Nonsense Court, ABC NIGHTLINE (May 18, 2010), http://abcnews.go.com/Nightline/judge.judy-rules-nonsense-tv-court/story?id=
10667950.
161. Brendan Koerner, Judge Judy: The Most-Watched Court Show for 452 Straight Weeks, SLATE (May 27, 2005), http://www.slate.com/articles/arts/number-1/2005/05/judgejudy.html (explaining that viewers love Judge Judy "because she offers them a fantasy of how they'd like the justice system to operate"). Of course, Judy Sheindlin acted the same way when she was a real judge in the Manhattan Family Court. Getlin, supra note 110 ("Scheindlin runs her court with an impatience that borders on rage" and speaks "with a hint of fury."). But when she was a real judge, that angry manner drew "scathing criticism," not adoration. Id. (lawyers complained that she was "needlessly cruel and sarcastic, a loose cannon in the halls of justice"). Judge Judy is a good example of the difficulty of distinguishing real from "ginned up" anger. See supra note 128. However sincere her anger displays may have been when she was a real judge, it is hard to believe that every televised anger display is sincere. She surely is acutely aware that her popularity and continued employment depend on successfully acting angry.
162. Cf. J. GILES MILHAVEN, GOOD ANGER 72-74 (1989) (noting the humor value in seeing someone get his "comeuppance"). Indeed, some of the pleasure a reader might take in seeing the apparently incompetent Schwarz get his comeuppance dissipates upon learning that he suffered from a serious brain disease, which might have contributed to his infuriating behavior. Fox Indus. v. Gurovich, No. CV 03-5166(TCP)(WDW), 2006 WL 941791, at *2 (E.D.N.Y. Apr. 12, 2006).
VANDERBILT LAW REVIEW [Vol. 65:5:1207 When judges make their anger at counsel known, those counsel may cry foul, claiming bias or partiality sufficient to damage their clients' interests.163 Challenged benchslaps involve not just sarcasm but also raised voices, red faces, yelling, insults, and threats. Courts, however, are reluctant to grant relief on this basis. Importantly, they are reluctant precisely because they believe such anger to be exceedingly commonplace. As one reviewing court explained:
[T]here is one form of professional predisposition all judges share that may be classified as a kind of bias: expressions of dissatisfaction with deficient lawyering, overbearing advocacy and deceptions that stretch judicial patience to its outer boundaries. These practices often arouse manifestations of frustration, annoyance and even anger on the part of judges. But, even if short-tempered, such reactions alone are not sufficient to disqualify a judge from a case because they are not necessarily wrongful or inappropriate; indeed, at times they may be called for or understandable. 164
Thus, where counsel repeatedly failed to meet deadlines and submitted markedly inferior work product, it was perhaps "infelicitous or unmellifluous" for the judge to refer to his pleadings as "junk" and
"garbage"; but these and other expressions of anger were to be expected and did not give rise to a claim of bias.165
Legal doctrine, then, assumes that judges' anger at lawyers is common and pervasive. As the Supreme Court declared in the leading case of Liteky v. United States:
Not establishing bias or partiality ... are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women, even after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune. 16 6
The empirical basis for this pronouncement is amply confirmed through the case law. Other courts give judges wide latitude in expressing anger at attorneys for making "misrepresentations" and speaking in "half-truths" before the court,16 7 as well as for asking
163. At least in the context of a recusal motion or due process challenge, judicial bias against a lawyer is legally meaningful only if it inures to the detriment of the client. See, e.g., United States v. Kahre, No. 2:05-CR-0121-RCJ-RJJ, 2007 WL 2110500, at *1-2 (D. Nev. July 13, 2007); Avitia v. Metro. Club of Chi., Inc., No. 88 C 6965, 1990 WL 205278, at *1 (N.D. Ill. Dec. 13, 1990).
164. Teachers4Action v. Bloomberg, 552 F. Supp. 2d 414, 416 (S.D.N.Y. 2008) ("[O]rdinarily frustration or anger are spontaneous reactions, often provoked by some objectively discernible cause .... In this category would fall expressions of dissatisfaction, frustration or anger that stem from the judge's response to what he or she regards as poor or excessive performance of counsel or inappropriate behavior of parties.").
165. Id. at 417.
166. 510 U.S. 540, 555-56 (1994).
167. Avitia, 1990 WL 205278, at *3 (attorney with a history of rude behavior was trying to judge-shop by prompting intemperate displays that he could use to justify a recusal motion).
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improper questions and making baseless arguments.168 Reviewing courts sometimes express discomfort with particularly vehement expressions, such as a judge commanding a lawyer to sit down and shut up,169 and are particularly chagrined when benchslapping happens in front of the jury.170
The very ubiquity of such anger, however, makes it hard to condemn. As the Second Circuit has noted: "Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation."1 7'
A courtroom video posted on YouTube provides a vivid example. A Kentucky state-court judge can be seen blowing his top when a smug lawyer accuses him of condoning jury tampering and threatens an investigation. The judge's voice raises, he curses and becomes visibly agitated, and at one point he smashes the bench with his fist and declares, "I'll yell all I want, this is my court."'172
Very few such judicial anger displays are found to warrant relief, in no small part because doing so would upend a large number of cases. But judges do sometimes indulge in displays of anger that are sufficiently extreme as to prompt corrective measures. 73 In one criminal case, a trial judge created a poisonously "acrimonious"
environment through repeated clashes with the defense attorney, at one point implying that he would physically harm the attorney were
168. Kahre, 2007 WL 2110500, at *2.
169. Taylor v. Abramajtys, 20 F. App'x 362, 364 (6th Cir. 2001) (lawyer was trying to provoke judge into outburst; court declined to find trial judge ran afoul of Liteky standard, though it was displeased with anger displays before jury).
170. Francolino v. Kuhlman, 224 F. Supp. 2d 615, 647 (S.D.N.Y. 2002). The trial judge in a Mafia case was outraged at the defense for delivering a lengthy opening statement that she believed was full of irrelevancies and "vented her anger" at these and other perceived missteps in front of the jury. She also got angry at the defendant, calling him a "prima donna," and accused defense counsel of making objections "rudely," threatening that "I will do things you don't like when you treat me in a way that I don't like." Though the reviewing court declined to award habeas relief, it expressed its displeasure with those anger displays.
171. In re Bokum Res. Corp., 26 B.R. 615, 622 (D.N.M. 1982) (rejecting bankruptcy attorney's request that the judge be recused because he was so angry as to be red in the face); see also United States v. Weiss, 491 F.2d 460, 468 (2d Cir. 1974) (rejecting claim of favoritism by the trial judge); Green v. Court of Common Pleas, No. 08-1749, 2008 WL 2036828, at *4 (E.D. Pa.
May 30, 2008) (rejecting habeas claim; judge had been very angry at defense counsel for disobeying order, but did not act irrationally).
172. Prosecutor Makes Threats to a Judge?, YoUTUBE (posted on Feb. 19, 2009), http://www.youtube.com/watch?v=-Dk6y5n .- Yo&feature=related.
173. United States v. Candelaria-Gonzalez, 547 F.2d 291, 297 (5th Cir. 1977) (trial "judge's sarcasm, his frequent interruptions and his antagonistic comments in the jury's presence," all directed at counsel, deprived defendant of fair trial).
VANDERBILT LAW REVIEW [Vol. 65:5:1207 he able.174 But even though it overturned the defendant's conviction, the appellate court expressed sympathy for the judge:
[T]rials in the district courts are not conducted under the cool and calm conditions of a quiet sanctuary or an ivory tower, and ... enormous pressures are placed upon district judges by an ever increasing criminal docket and a demand for speedier trials of criminal defendants. These pressures can cause even conscientious members of the bench.., to give vent to their frustrations by displaying anger and partisanship, when ordinarily they are able to suppress these characteristics. But grave errors which result in serious prejudice to a defendant cannot be ignored simply because they grow out of difficult conditions. 1 7 5
In sum, judges' anger at lawyers is an inevitable, even ordinary occurrence. The degree to which this is so is reflected in the doctrine that has evolved in response: only the most extreme manifestations of judges' anger at lawyers trigger oversight, even if quotidian manifestations prompt occasional chagrin. Nor does it appear that courts provide breathing room for judicial anger simply as a concession to human weakness. Sometimes, it seems, they regard such anger and its expression as being "called for.'1 76